The case of the complainant is that the complainant entered into a loan hypothecation agreement with the oP Sundaram Finance Ltd on 25.8.2012 bearing contract no.H029000088, for the purpose of purchasing of Swaraj Mazda 909 vehicle bearing Reg. no.WB 15B 7298 as a means to earn livelihood. Further case of the complainant is that his total loan amount was
divided into 47 EMIS @ Rs.26000/- each. Out of 47 EMIS, the complainant paid 26 EMIs upto 18.1.2015. But due to financial hardship and health problem , the complainant was unable to pay some EMIs and for that reason the OP sent notice to the complainant on several occasions and threatened over phone with dire consequences. Thereafter, with the help of the muscle men, the oP/financial institution on 18.1.2015 seized the vehicle illegally and forcefully from the possession of the complainant’s driver while moving across Delhi Road near Bhareswar and since the vehicle is under custody and control of the is OP/authority. Hence, this complaint , filed by the complainant praying for relief as mentioned in the prayer portion of the complaint petition.
The Opposite Party contested the case by filing Written version denying inter alia all material allegations. The case of the oP is that the complainant pursuant to and in term of the Loan-cum-Hypothecation Agreement although paid some instalments but he fails to pay his balance due instalments as payable under the said agreement and in course of repeated requests and reminders to the petitioner and called upon the petitioner to make payment of all the arrear of instalments and penal interest for delayed payment and also make over possession of the said vehicle to the oP company. But since the complainant did not make payment of the EMI of the vehicle in question, having no other alternative the oP as per terms and conditions of the aforesaid loan agreement reposed the vehicle on 18.1.2015 and sent notice to the complainant on 20.1.2015 for settlement of the contract and upon receipt the letter this petitioner paid part payment of Rs.70,000/- and promised to pay the balance
amount. But the complainant did not pay the balance amount. Hence, the oP prays for dismissal of the complaint.
Complainant filed documents of loan agreement along with EMI payment receipts. The complainant also filed Affidavit in chief and WNA. The Opposite filed photo copy of Loan agreement of the loan in question, photo copy of letter dated 25.9.2012 addressed to the complainant and some other photo copy of documents and also filed Evidence in chief and Written Notes of Argument.
POINTS FOR DECISION
- Whether the complainant is a consumer?
- If there is any deficiency on the part of the oP ?
- If complainant is entitled to get any relief?
DECISION WITH REASONS :
Point no.1
Complainant took loan for purchasing vehicle to earn his livelihood from the Op /Sundaram Finance Ltd . So the complainant is a consumer under the OP as per section 2(ii) of the C.P.Act 1986. The point no.1 is thus answered in favour of the complainant.
Point no.2 and 3 :
Both the points are taken up together for easiness of discussion.
Both sides have filed Written Notes of Argument. It appears that Op sanctioned loan for purchasing of the said vehicle for which complainant paid major amount of money. In the agreement it was decided that the whole loan amount with interest i.e. principal and interest paid by the complainant in 47 instalaments. Complainant paid 26 instalments. In the meantime, the Op without any active information to the complainant seized the vehicle by force . After that complainant paid Rs. 70,000/- inspite of that vehicle was not returned to the complainant. The complainant paid regular instalment from 25.8.2012 to 2014 regularly . On 18.1.2015 the oP seized the vehicle without any reason or without any notice to the complainant. The OP is not at liberty to act anything jeopardizing the interest to the complainant and damaging the agreement or against the written agreement. The agreement for payment of loan was for four years starting from September, 2012 . There is no specific case of the oP regarding default of the complainant in paying the instalment. But agreement was made at the end of 2012 and was forced during the last of 2016. It is not the case of the oP that the complainant did not pay the within four years and by 47 instalments. Record shows and it is the case of the OP also that there was no irregularities for one or two times by the complainant. At the midst of the continuation of hypothecation of agreement , the complainant seized the vehicle on 18.1.2015 well within the time of continuation of agreement and by that date complainant paid 26 instalments i.e. 21 instalment yet to be paid by the complainant. It is admitted that complainant was unable to pay some instalments due to financial hardship and he paid 26 instalments EMI as on 18.1.2015. So during the continuation of agreement the Op seized the vehicle which is against the agreement and unauthorized act of the oP. Merely issuing of some notice regarding
failure of payment one or two instalments are not the grounds for seizing the vehicle. The borrower complainant has every right to make payment within stipulated time laid down in the agreement. The seizure of the vehicle without the active knowledge of the complainant is the glaring example of vehicle financer at the present time that at the beginning they request the purchaser to take the loan and after some days they uses their sword and muscle man and with the help of hooligans they repossess the vehicle of the complainant like other persons. It is modern practice of the Financer to play the game to acquire illegal money with the help of muscle man or hooligans. The acts of the oP in this present case is glaring example of the highhandedness of the financer. In this case, even after taking Rs.70,000/- from the complainant the OP did not hand over the vehicle and showing the Arbitration clause and territorial jurisdiction, the oPs are doing unfair trade practice for illegal gain. The act of the Op must be condemned, otherwise, the general public and other persons will take vehicle in loan for their livelihood would be compelled to commit suicide and their family will be destroyed. Such , monetary demons of modern age should be strictly punished to protect the general public from their thrust of money.
So, after deep deliberation of material on records, Evidence in chief and Written Notes of Arguments filed by both the parties we are of the opinion that the complainant has been able to substantiate his case. So , he is entitled to relief. Hence it is –
Contd…6
Ordered
That the C.C. case no. 176 of 2015 be and the same is allowed on contest. The oP is directed to pay to the complainant a sum of Rs.12,22,000/- (Rupees twelve lakhs twenty two thousand only) as paid hypothecation agreement amount with interest. The Op is further directed to pay the complainant a sum of Rs.2,88,000/- (Rupees two lakhs eighty eight thousand only) towards mental agony, harassment, pain and litigation cost.
The Opposite party shall comply the above order within 45 days from the date of this judgement i.d. the complainant is at liberty to execute the order by filing Execution case in this Forum.
Let a copy of this order be made over to the parties free of cost.
